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Walkiry (and many, many others) writes "In yet another copyright bickering lawsuit, Marvel is suing NCSoft and Cryptic Studios over their MMORPG City of Heroes due to copyright infringement, apparently because of the costume creator. "Marvel argues that the game's character creation engine easily allows players to design characters that are virtual copies of its own superheros, including 'The Incredible Hulk'. Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters." There are quite a few people suspicious that this is nothing but an effort by Marvel to undermine Cryptic Studios' successful game to prepare for the launch of their own comic book based MMORPG."USA Today has the story as well.

A new low in using the courts to unethically hurt the competition. It makes me scared to innovate. For example, I'm writing a music description language. If someone uses it to create music that is significantly similar to a copyrighted piece of work, am I going to get sued? This abuse of the courts is killing this country.

Not just nitpicking here, the dispute is over trademark, not copyright.
EVEN WORSE...
Marvel and the SONY-suck-a-lot corporations want to release an online universe populated with Marvel characters. This is just a legal attack to knock the competition into a dive while their NeverFun (Evercrap) engine drives out another lousy product.
http://www.hollywoodreporter.com/thr/article_displ ay.jsp?vnu_content_id=1574246 [hollywoodreporter.com]
Aug. 02, 2002
Gamers creating own universes
By John Gaudiosi
Sony is getting serious

A new low in using the courts to unethically hurt the competition. It makes me scared to innovate.

That might be a little harsh.

Without knowing how the characters are generated (TFA is a little vague), if there are macros which will use the same patterns as the X-Men stuff, that might be a little dodgy... especially since unless you accept that there are certain visual cues which automatically mean X-men.

For example:

The company singles out a game feature for creating ``a gigantic, green, 'science-base

The character creation process in CoH allows a LARGE amount of customization. When I created my character, there were no pre-set costumes or color schemes. You choose your origin, power types, and so on, a mix and match type deal. There's no particular "Hulk" power/appearance set to choose, though with the customizability I can see the allure of mimicking your favorite hero's power sets when you can.

Then you pick your character's appearance. There are a few body types including big bulky monster-sized guys (which I assume Marvel has not trademarked, Hulk being a Jekyll/Hyde homage/retelling already), which don't start out green or with purple pants. Again, there are people who use the engine's customization options to mimic their favorite hero, and of course the ones with simpler costumes (e.g. the Hulk wears... purple pants) are significantly simpler to copy than many other characters, the in-game copies of which are recognizable mainly because Marvel, DC, etc. have indeed done great jobs with making their trademarked costumes universally recognizable to the point where the in-game copes, which often have to improvise with incorrect patterns, equipment, and so on (because CoH does NOT actively try to allow creation of already trademarked characters) are still recognizable as the homages that they are.

There are no "macros" per se. What happens during CoH costume creation is that you have three basic skeletons (male, female and "huge"), three body areas (head, upper body and chest) and multiple areas within those three areas to customize the look. Now, you can create, say, a character that looks exactly like Hulk by giving him the huge skeleton, green skin and hair, the closest face available and purple pants - that would be the absolute easiest ripoff to pull. You could make Cyclops by choosing the partial mask or mask with hair, a visor and his blue/yellow costume (with some tech accoutrements depending on which era you're shooting for) - again, a very easy one. The more complicated costumes could take a lot of time to build but you can get close to most of them.

Of course, all that being said, NCSoft does NOT provide templates for making ripoff characters easily (like being able to choose "Wolverine yellow/blue" or "Wolverine brown") and a player has to go to some effort to make a ripoff character - in most cases, it would be far easier to make an original design. Further, they specify in the terms of service that ripoff characters are not permitted, and when they are reported/caught they are forced to change names and/or costumes.

I don't know if Marvel is trying to shut CoH down or cripple it (like by making NCSoft remove particular costume traits so that customers can no longer make costumes that look like Marvel heroes). It seems to me that if Cryptic and company are making a good faith effort to police the ripoffs, that SHOULD be enough to get them off the hook. Of course, nobody ever said the law always made sense.

Shouldn't this be filed under OCILA? COH could be construed as an "access provider" hosting content for its uses, and if the Marvel people find them, they should file a takedown complaint against the individual user.

Your argument is equivalent to saying that it's ok if the elite (in this case, those skilled in drawing) violate copyright, but to make that available to everyone is wrong.

In fact, neither case is correct, and the horrible nonlogic of damaging a general purpose system with the goal of restricting certain things is stupid.

To take this from the other side, if Marvel wins this terrible case, then that implies that creating a character in City of Heroes is akin to creating one in a comic book- so if your guy has an orange cape and yellow tights and black hair, maybe you can sue someone who introduces such a character in comic books. Meaning that, if you want to create a comic book with an entirely new character, you can't just check the history of comics, you have to access the CoH (and any other relevant MMORG) database to make sure you aren't "infringing" on a similar design that some kid in Kansas came up with at 2 AM on pot.

Did you even READ what I posted... it does NOT say that it is OK if the elite violate copyright. What I am saying is... the parent post was WAY off base.

If someone who can draw the Hulk does... and then calls the drawing 'Kluh' and makes a profit (comic, whatever)... THAT IS a violation of copyright.

If I (who can't draw for shit), draw a picture that only I know was intended to look like the Hulk, and then sell that 'non-likeness' under the name 'Kluh', chances are I will NEVER be convicted of copyri

Your missing the point... the original post implied the equality of suing Bic for drawing charcters similar to Wolverine and the Hulk. In that case you are correct in asking the question "So who is violating the copyright?" With a Bic I can draw whatever is in my brain (feasibly, although not well); an unending and infinite set of possibilities.

CoH, however, certainly provides mechanics for the production of a finite set of character combinations. I to have logged a few hundred hours in CoH and I agree

I was looking for a way to give Marvel some credit here, being that I've never seen the CoH character creation interface. Maybe there's presets that look all too close to Marvel characters? Certain outfits that are almost identical? I'd be like Bic making a stamp in the shape of Hulk or Wolverine: while you're still putting it on paper, Bic made it that much easier for you to recreate Marvel's IP.

And then I read this:

The New York-based company also took issue with the ability of players to go so far as to name their superhero creations after Marvel comic book characters.

And realized Marvel is completely out to lunch on this. They claim that CoH is infringing IP because they didn't disallow people from typing in the specific, trademarked names? Should CoH keep a database of every trademarked name and lock them out as character names? "Sorry, you can't be Kroger, that name is already taken. [krogers.com]"

>And realized Marvel is completely out to lunch on this. They claim that CoH is infringing IP because they didn't disallow people from typing in the specific, trademarked names?

It gets better, they actually do disallow them. Cryptic sent a request to Marvel, DC and others for a list of trademarked stuff they wanted banned, and you won't be able to name your character just "Hulk" or "Superman", because that's filtered.

I can't think of any reason to do this other than NCSoft really is a giant even in comparison to Marvel. The original Lineage's subscription numbers blew away Ultima Online and Everquest's combined.. Acacia and SCO brought us the patent lawsuit business model, is Marvel following in their steps?

Well, the Terms of Service specifically forbid using any name for a character that is trademarked, copyrighted, etc. by a third party, with loss of your account as a penalty for doing so anyway.

Mind you, when I first started playing, there were a lot of comic-book clones, but they are extremely rarer now because most players, it seems, would rather make something that is uniquely theirs rather then be the 18th or 63rd Tick rip-off.

It's amazing that someone can sue b/c a character creatiion engine allows one to design a large character with green skin and pants.I'll have to admit when I first started playing the game I made a DBZ character and there WERE a lot of wolverine clones out there, but none came anywhere close to the level of detail that Marvel characters have.Also, if I'm not mistaken there are certain names that you cannot use even though there are no characters using them. One that comes to mind is "Lucky".I hate that laws

This just in...MARVEL SUES MUD USERDisney today brought an IP lawsuit against user Wolverine179, who not only used Marvel's copyrighted character's name in an internet chatroom designed to facilitate roleplay, but also used many of that character's trademark lines....sigh.--Stephen

The funny thing is, City of Heroes does (or at least, they say they do [cityofheroes.com]) have a filter that prevents the more obvious trademark names from being used.

I'm not sure whether that link will work for non-subscribers to the game, so here's the relevant bit:

Part of providing such a safe environment means we must ensure that all character names are created in a clean and positive light to meet the Teen Rating of the game while also following all copyright and trademark standards. In order to meet those ends, we ha

This is akin to suing Bic because it allows users to draw pictures extremely similar to Hulk or Wolverine.

WTF are you talking about? Ok, I can kindof see how giving yourself sideburns could be using a Bic to "draw pictures extremely similar" to Wolverine, but are you saying that every clean-shaven guy is infringing on the Hulk trademark??!

No, it is actually a little different. The trick is that Bic cannot take the pen away, cannot review what you've drawn, and basically is not involved.

Think back to the Napster case and the Grokster case. Napster was destroyed in court, whereas Grokster has (so far) survived. The key difference was that Napster had centralized servers, and could therefore check to see whether infringement was occurring, and could act to stop it. Grokster could not since they made the software, but didn't have any involvemen

But Cyptic studios did request from marvel a list of trademarked named they can ban. And they did ban them. Yes this is similar to the Napster case. The decision in the Napster case was that you need to notify Napster of specific things you want blocked. Has Marvel tried this and been ignored I would understand. From what I've seen they have not, and thus don't meet the basic requirement of napster which is willfull contribution.

But Cyptic studios did request from marvel a list of trademarked named they can ban.

Proving that they can ban things only makes it worse. But remember, if this is a copyright suit, then a list of trademarked names is irrelevant. Especially since names aren't copyrightable.

You are right though, in that the Napster decision, following Sony, won't impute knowledge for contributory liability purposes without there being actual knowledge. But having done so, failure to remove such infringing material is contr

Actually its a trademark suit. The trademark likeness of their characters. I'd be willing to bet that if Marvel went through the character creation wizard and figured out the attributes that make the likeness of their characters. CoH could filter it if requested. I bet they would even if asked. Simply put Marvel sees this game as a threat to their future game plans, and is suing without actually trying to fix the problem through cooperation, which is the exact remedy of the Napster case. Hopefully the judge

Honestly, though. Companies are taking IP far too seriously these days. Calm down, get over it. If anything, it shows whatever you're doing is working, because it's popular! Don't trash it by being a jerk.

Myers: Okay, maybe my dad did steal Itchy, but so what? Animation is
built on plagiarism!
[lawyer slaps his forehead]
If it weren't for someone plagiarizing the Honeymooners, we
wouldn't have the Flintstones. If someone hadn't ripped off Sgt.
Bilko, they'd be no Top Cat. Huckleberry Hound, Chief Wiggum,
Yogi Bear? Hah! Andy Griffith, Edward G. Robinson, Art Carney.

Myers: Your honor, you take away our right to steal ideas, where are
they gonna come from? Her? [points at Marge]

In other news, Bic has been sued as someone used one to draw a copy of Wolverine..

Seriously however. I don't think that CoH is at all designed to allow people to rip off Marvel, unless marvel wants to claim it has copyright to a) people in stupid looking suits with a logo on them, b) women in skin-tight outfits or c) Huge hulking creatures.

AFAIK, these were all around long before Marvel. Also I would say CoH should be praised for making their system of character design as flexable as it is. Unfortunatly t

This is really really stupid. It's like suing crayola cause kids can draw Spider-Man. The game provides the tools to create a character and it's up to the player to make him look how they want.

Is Cryptic supposed to keep a database of all colour schemes of all super heroes that ever existed (also the multiple costume variations they occasioanly pull out to boost sales) and prevent users from picking them. How many do you think there are? Probably over 10,000 from Marvel and then there's DC and all the r

I guess they forgot that they taught the world how to create these characters, right?? I remember having the "How to draw" books and having a couple of them dedicated to Hulk, She-Hulk, X-men, etc.
Look out everyone, hide those books if you still gottem. It's Stan "Wannabe Elliet Ness" Lee comming to get you!

You can't blame Stan Lee. He hasn't been anything more than a figurehead in a long time. To the best of my knowledge he does not work for the company in any way at the moment. Blame the company not "The Man."

Because he did not start or create the company, he just created the characters that helped it grow. Bill Gates founded MS, Stan Lee did not found Marvel. Gates also still has power at MS, even if he doesn't have his hands in everything they do. Stan Lee does not have power at marvel. It is argueable that he never really did.

If they detect user's with "Hulk" in their name, they will often reset that character's name to "Generic Hero x" and give them a day or so to pick a new one. This is even if the character looks nothing like the Hulk.

I mean, please. Some characters are just so friggin easy to copy. The Hulk is a big green (or grey) buy with torn shorts. Is it Cryptic's fault that Marvel isn't very original in their design?

Sure, a character like "The Punisher" or "Wolverine" would also be easy to duplicate in the game, but who cares! People aer building the character they want. They want someone with sharp metal claws and a ever-familar beard, then so be it. If they want to be big and green, so be it. If they want a red and gold armor suit of battle armor, let them.

Personally, I think DC would have more of a leg to stand on. They have tons of heros with pretty generic looking costumes (solid-color tights with an emblem). Many of Marvel's characters have hard to copy designs.

Shame on Marvel, or at least on their legal department.

Oh well, I stopped playing a few weeks ago anyway. It just stopped being fun.

Members can upload to and create content on our servers in various forms [...] you acknowledge and agree that such Member Content is the sole property of NC Interactive.

So by uploading a Wolverine-like character, NC Interactive claims ownership of the Wolverine-like character, so NC Interactive is in trouble for owning and using a trademarked character in their game.
However...

This is confusing and illogical, as much lawyer speak is. How does one tell a 'reasonable person' that they own something while at the same time putting all the blame on someone else. If you own it all of it is yours, good and bad. If you dont own it then the user takes the fall. This EULA is irrational, and perhaps someone should file an amicus brief to that effect.

The thing is, I wouldn't play a Marvel Comics based MMORPG even if they did have one out (which they don't, and I seriously doubt we'd see one before 2006).

I don't want to play a super-hero who is second banana to Spider-Man or the Fantastic Four or the Avengers. I don't want to have to deal with people wanting to be able to storm the Avengers Mansion because they think they should be able to.

I want to make a hero who is as unique as I can make him, and is not burdened down by years of comic book history, much of which is crappily written. (I refer you to the Clone Saga, in particular, and most titles that start with the letter 'X'.)

They've been working on one for some time, or so I've been informed by someone in a position to know these things. There is a long delay between the idea stage and the release stage, though, so it probably won't be out for a bit. I'm guessing they've been keeping a low profile so that they don't inadvertantly confuse everyone into joining up with CoH thinking it's the "superhero game" they've been hearing about.

Back when we were all creating our characters for our Communist supergroup, we had a bit of a back-and-forth with Cryptic over who, exactly, owned our ideas, especially if the characters we used were ideas we wanted to turn into a comic, or based on existing ideas we had used in a comic.

It came down to the EULA which states that your character and all derivations or representations thereof are property of Cryptic and NCSoft. To which I asked pointedly "What about the Fantastic Four [nerdgod.com]?"

This was going to bite them in the ass eventually, as they allege to own everything you create, even if it's not yours to create.

My suspicion, as I've voiced elsewhere, is that they will be required to remove these characters from the game, and pay damages to Marvel, and probably DC and whoever else, in the end.

Then, of course, there's the obvious ownership issue of this guy [nerdgod.com].

My suspicion, as I've voiced elsewhere, is that they will be required to remove these characters from the game, and pay damages to Marvel, and probably DC and whoever else, in the end.

Remove what characters from the game? Any character anyone's made that looks vaguely like the Hulk? The color green? Large characters? All characters with claws? Or just ban some strange list of combinations any IP owner anywhere in the world comes up with?

I was speaking specifically of the obvious Fantastic Four characters. I took that shot before they added UI screen-caps to the game, but I assure you their names matched the comic characters, and their powers were as similar as the game would allow.

The character in that screenshot, on the right, is a character I made based on my own comic book ideas. Technically, if I continued to play that character (I deleted her), I would be unable to create comics based on her as Cryptic would own the rights to the repr

What're they gonna do next-- sue a pencil and paper, because some guy traced the Hulk?

They won't sue just because some guy traced the Hulk. However, they will sue if some guy traced the Hulk and then used his drawn Hulk to do business (ads, posters, business cards, anything even remotely related to his business). In this case, they wouldn't sue the pen-company, they would sue the owner of the infringing drawing.

In this case, from the EULA, NC Interactive owns the character. They are using the character

Ah, good point. That certainly opens up a lot of interesting implications for virtual property ownership and user-created content. If they have to back down and give users ownership over their own likenesses... wow.

I had pretty much blown off Marvel's claims until I read the parent post. Now it seems (to me, at least) that this lawsuit may have some very interesting ramifications with respect to online intellectual property rights as well as EULAs. Most likely it'll be settled out of court and won't provide any sort of binding precedent, but there's still that small chance that some district court somewhere will make a ruling and actually test the validity of EULAs.

I think God should sue DC for infringing on his intellectual property of humanoid figures that can articulate. Perhaps the Nazi party should also sue DC and Marvel for their use of the Swastika in many of there post 1940 comics. How often has Captain America battled the Nazi's in comic books? That would violate their IP and infringe upon their flag wouldn't it? I also think that Marvel and DC need to stop infringing upon the United States Governments IP including the American Flag colors. While we're at it

I am currently going to sue HP because I just realized the scanner I bought can be used to make perfect copys of my copywrited artwork. Plus, I'm also going to use sony because their dvd burners can make perfect copys of my copywrighted home movies. Who's with me? Millions of SCO lawyers are about to lose their job and are ready to work with us.

You couldn't sue HP because their stuff can let someone infringe your copyright/trademark. You can only sue the owner of the infringing material, so if you duplicate your artwork, you can sue yourself for owning and using a copy of your work.

Marvel isn't suing because there is a tool that allows people to make infringing characters, they are suing because NC Interactive owns the characters (as per the game EULA) and are using them to do business.

I am currently going to sue HP because I just realized the scanner I bought can be used to make perfect copys of my copywrited artwork. Plus, I'm also going to use sony because their dvd burners can make perfect copys of my copywrighted home movies. Who's with me?

No one's with you until you learn to spell copyright correctly. It's not about Writing Copy, it's your Right to Copy. CopyRight.

However, you make an excellent point, as sarcastic as it may have been. The makers of technology cannot be held respo

As these ridiculous examples come to surface, you'll see more public momentum to freeing culture.

It's bad enough that only DC and Marvel can use the (obviously generic, but actually trademarked) term Super-Hero.

It was only 24 years ago that a wrestler took the name Hulk Hogan. Nobody seemed to mind back then. Why is it that we have to avoid 'hulking males with green skin and tattered purple pants' in our video games?

Any why doesn't Marvel sue the pants off of DC with their obvious Hulk-ripoffs Soloman Gr

WWF sued WCW for using "Hulk" when Hogan switched over. Marvel then sued WWF for using "Hulk" for all those years. To the best of my knowledge WCW decided to call him Hollywood Hogan at that point and WWF dropped it's suit. When WWF dropped it's suit then Marvel dropped thiers. In that case Marvel clearly had to counter sue or WWF would have set a precidence and taken the copywright for "Hulk". Incedently the name Hulk Hogan was taken from the Incredible Hulk TV show with Lou Ferregno(sorry if I misspe

I don't play CoH anymore, but I did play the first 3 months the game was released.

The coolest part of the game is the freedom people have to create their characters. CoH has tried to stop people from imitating real comic book characters but people keep coming up with ingenious ways to get around it.

You can't make a character with claws like Wolverine but making a guy wearing yellow and black with a mask and regenerative abilities is possible. Is that same as Wolverine? Probably not. It's all a judgeme

Actually, as long as the words are phonetically similar (such as your Woolvrine/Wolverine and WeaponX/Wepon Ex), they can be trivially matched with the public domain SoundEx algorithm. It's what my team uses for geocoding, so we can find mistakes when people type "Mane St" instead of "Main St" for an address.

The worst part about this little tale is that the makers of COH made a good faith attempt to eliminate look-alike heroes who attempted to use trademarked names. They even accepted lists of names from the major comics publishers for their block list.

This strikes me as being extremely similar to the lawsuits that the RIAA originally brought against peer-to-peer software makers, as well as the intent of the INDUCE Act. In this case it is not the company who is violating copyright, they are merely providing a tool that can be used by the end-users to infringe copyright.

I would think that given the recent court rulings (no time to find relevant links) that have indemnified P2P creators against infringement suits, that as soon as this goes to court it will

In this case it is not the company who is violating copyright, they are merely providing a tool that can be used by the end-users to infringe copyright.

You are completely wrong. As per the game EULA, NC Interactive owns the characters, even though it's the users that made them. Therefore, the company owns the infringing work, and they are the ones who should be sued. They're not being sued for providing a tool, they're being sued for claiming ownership and using characters they don't actually own.

Had a great looking character, big, with green skin and torn clothes. I was going to call him "The Incredible Bulk". Now I'll have to make him smaller, put him in a business suit, and call him "Marvel Blows Chunks Man". His super power is his magic briefcase, from which he can throw thousands of pleadings and C&D letters, completely papering over his opponent. Fear him!

For example, if I have a character named Ferro Man, who wears an armored suit, am I infringing on Iron Man? Okay, what version of Iron Man, then, is Marvel preventing me from copying? The gray suited one? The red and gold armored one? The one who flies and blasts things? What if I change the name and sex to Ferro Woman and Marvel later comes out with a character named Iron Woman?

And how is Marvel planning on preventing users of their own future game from creating a BattyMan or a Green Lamp character? Will DC sue Marvel when Marvel releases their game?

Cryptic does police as much as they can, but is a character named the Uncredible Bulk a problem? What if the character is a skinny white girl?

What if I have an Asian character with claws named "The China Wolf"? Am I infringing? What if Marvel decides next week to change Wolverine into an Asian girl?

Anyhow, just things that pop into my mind. I currently have a character on CoH whose name was just used on the Cartoon Network's Justice League Unlimited show and was previously not used for a superhero. If DC changes her costume or powers to look like my character, can I sue them (or rather, can Cryptic sue them, since they own that character now)?

They have STRICT warnings against this, and in their terms of service is the following.

(e) Character Name. In order to use the service, you must create a character and choose a name for your character to identify your character to other Members (your "Character Name"). You may not select as your Character Name the name of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NC Interactive, or which NC Interactive deems at its sole discretion to be vulgar or otherwise offensive. NC Interactive reserves the right, in its sole discretion, to (1) delete or alter any Character Name or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right.

(f) Super Group Names, Super Group Member Titles, Battle Cry, and Character Description. While accessing the service, it is possible to name your Super Group, give titles to members of your Super Group, create a Battle Cry, and write a Character Description. You may not create a Battle Cry, Character Description, give a name to a Super Group, or give a title to a Super Group member that is the name/description/title of another person, or a name/description/title which violates any third party's trademark right, copyright, or other proprietary right, or which may mislead other players to believe you to be an employee of NC Interactive, or which NC Interactive deems at its sole discretion to be vulgar or otherwise offensive. NC Interactive reserves the right, in its sole discretion, to (1) delete or alter any name/description/title given to a Super Group, Super Group Member, Battle Cry, or Character Description or (2) terminate any license granted herein, for any reason whatsoever, including, without limitation, any suspected or actual infringement of any trademark or trade name right, copyright, or other proprietary right

The analogy to suing Bic because you can draw a copyrighted character with their pens doesn't hold because Bic has zero control over what you do with their product once you purchase it. If I draw Spiderman in my sketchbook and keep it in my home, I may or may not have broken copyright (not clear on how the fair use falls out there) but Marvel has suffered no damages so they probably aren't going to sue me. If I try to sell that sketch on EBay, I'm now a good target for copyright infringement, but the Bic

Cases like these are the driving force behind modern "cost-shifting" court rules. Many states are now implementing "looser pays" or "If you reject a settlement and win less, you pay" rules.

See your local rules of civil procedure for more information.

The end result is that, when a big company tries to file a weak claim and shut down a small competitor, The competitor now has a much easier time finding and affording lawyers for its defense. Unfortunately, small companies in any United State tend to have a

I used to have a copy of GURPS Supers, in which the heros are refered to as 'Metahumans' because Marvel and DC jointly own the rights to 'Superhero', 'Supervillan', etc. I think it may be a trademark though (I know, how the fuck could it be a trademark when it's not the name of a company? Same way Barbie is). It's pretty fucked up, but then so's all American Content Law.